Q: If the other parent and I live in different states, how do we know where to file our custody case?
A: The Uniform Child Custody Jurisdiction and Enforcement Act, most often simply referred to as the UCCJEA, determines the state that you must file in. If the child has never been subject to a custody case, then you will file where the child has lived for at least six months.
Sometimes one parent will file for custody in his or her state, although the child does not live there. The other state does not have jurisdiction. You will need to appear and ask the Court to dismiss the action for lack of jurisdiction, or you should hire an attorney in that state to do so on your behalf.
Q: The original custody order was entered in Virginia, but my child now lives with me in Kentucky. Can I file a new custody case in Kentucky?
A: That depends. The UCCJEA states that ongoing jurisdiction will remain in the issuing state so long as one parent remains in the state. However, this can be tricky. If the remaining parent then leaves Virginia, but later returns to Virginia to try to keep jurisdiction there, the Court will likely register the Order in Kentucky because there was a time when neither parent nor the child remained in the issuing state.
In some cases, although one parent remains in the issuing state, the new state may still take jurisdiction of the case. Usually this would occur if the original state is determined to be an "inconvenient forum" or if the vast majority of the evidence could be found in the new state.
Q: What is the process for starting a custody case in Kentucky?
A: In Kentucky, the Circuit Court can hear cases involving custody of children. In many jurisdictions, the Court may have a Family Court, which is a Circuit Court specially designated to only hear divorce, custody, child support, dependency/neglect/abuse, domestic violence, and other family-specific cases. To initiate a custody case, the person who wants to open the case, the Petitioner, must file a Petition that includes the information required by the Kentucky Revised Statutes and any local rules. The Petitioner must have the Petition served upon the other party and must pay a filing fee. After service, the Respondent can (but is not required to) file an Answer, and either party can begin filing motions, or requests for relief, with the Court.
Q: Can I move my custody case from another state to Kentucky?
A: If you meet the requirements under the UCCJEA, as enacted in Kentucky, you may be able to Register your existing custody order for enforcement and modification in Kentucky. You will have to file a Registration of a Foreign Order petition, then serve it upon the other party. If the other side objects, or if the Court is not convinced that the custody action should be moved, the Judge may have a teleconference with a Judge from the other jurisdiction. Together, they will decide which state should retain the action.
Q: After I obtain a custody order in Kentucky, can I take that order to the police in another state for enforcement?
A: Unfortunately, while each state must give full faith and credit to other state laws, police officers are not required to enforce another state's court orders. In order to enforce a Kentucky Custody Order in another state, you would need to Register your Kentucky Custody Order in the other state for enforcement only. You would request the registering court to give you police assistance as necessary. That Court could then issue an order requiring their own police officers to assist you with retrieving your child.
Q: How do I find out more about the UCCJEA in Kentucky?
A: The UCCJEA is complicated. You should read the UCCJEA as enacted in your own state, as well as the UCCJEA as enacted in the other state. For complex UCCJEA issues, you may be required to submit a brief to the Court with a factual and legal analysis of why your case should be heard in the jurisdiction you are requesting.
If you have an issue that involves more than one state, you should contact an attorney familiar with the UCCJEA. Our firm has regularly handled UCCJEA issues in Virginia and Kentucky, and we understand the often complex requirements. Call us today for a FREE consultation.